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2011 DIGILAW 365 (KAR)

Veeranna v. Gouramma

2011-03-30

D.V.SHYLENDRA KUMAR

body2011
Judgment :- 1. This second appeal u/s 100 of the Code of Civil Procedure is by the plaintiffs in O.S.No.748/2008 on the file of the Prl. Civil Judge (Jr.Dn.) and Prl. JMFC, Dharwad, a suit, for bare injunction to restrain the defendants 1 and 2 from interfering or disturbing the possession and enjoyment of the suit property, a printing press located at CTS No.272/2/MF measuring 109.16 sq. mtrs. at Subhash Road, Dharwad, a commercial area and the building itself being a part of commercial complex but the land on which the structure stood being in the ownership of the plaintiffs. The suit was contested by the defendants by filing the written statement. It was contended that the defendants are in possession of the subject property, that the plaintiffs have no title to the subject properties specifically the printing press which was the property of the 1st defendant and the 2nd defendant being a nephew of the 1st defendant's husband helping the 1st defendant in managing the printing press after the demise of the husband of the 1st defendant in the year 2007 and therefore the suit for injunction has to be dismissed as it neither had any cause of action nor tenable in law etc., The defendants had placed material in the form of a license issued originally in favour of 1st defendant's husband and later it stood transferred in the name of the 1st defendant after the demise of her husband to evidence that it was the 1st defendant who was in possession and management of the printing press etc., 2. The trial court on such contentions had framed the following issues: “i) Does the plaintiffs prove that they are peaceful possession and enjoyment of suit schedule property as on the date of filing the suit? ii) Does the plaintiffs prove the alleged interference by the defendants? iii) Whether the plaintiffs are entitled for the relief of permanent injunction? iv) What order or decree?" and purporting to appreciate the evidence let in by the parties, decreed the suit as sought for and restrained the defendants. 3. Aggrieved defendants had appealed before the lower Appellate Court in R.A.No.46/2009 on the file of the Prl. Senior Civil Judge and CJM, Dharwad. iv) What order or decree?" and purporting to appreciate the evidence let in by the parties, decreed the suit as sought for and restrained the defendants. 3. Aggrieved defendants had appealed before the lower Appellate Court in R.A.No.46/2009 on the file of the Prl. Senior Civil Judge and CJM, Dharwad. In view of the rival contentions, the learned Judge of the lower Appellate Court had formulated the following points for determination: .“i) Whether the judgment and decree passed by the Lower Court calls for interference by this Court?" 4. This point was answered in favour of the appellants-defendants on re-appreciation of the evidence particularly noticing the significance of Ex.D.15, the trade license issued under the provisions of the Shops and Establishments Act, by the said Municipal Corporation. The learned Judge of the lower Appellate Court found that it was not of much significance for the outcome of the appeal. The suggestion by the counsel for the plaintiffs to the 2nd defendant who had deposed as DW-1 that the transfer of the license in favour of the 1st defendant was not very open and that it had been in a clandestine manner and in connivance with the authorities of the Corporation etc., had been denied and while the learned trial Judge thought it was to be given considerable significance learned Judge of the lower Appellate Court thought otherwise and finding that it was the defendants who were in possession of the printing press, allowed the appeal, reversed the judgment and decree of the trial court and dismissed the suit. 5. It is aggrieved by this reversal of fortune, the present second appeal by the plaintiffs. Notice had been issued to the respondents-defendants in the suit about the admission and respondents are represented by counsel. 6. Mr. Satish S. Raichur, learned counsel appears for the appellants and Mr. Sadiq N. Goodwala, learned counsel appears for the respondents. There was an attempt made by the parties to resolve the matter in an amicable way having regard to the fact that the parties are closely related and particularly the situation in which the 1st defendant is placed as of now, a lady who has lost her husband and who has to take care of a young child, a daughter of 4 years at the time of filing of the suit etc.. though the parties had appeared before this court and assured the court that there should be some settlement with the help of the counsel etc., Mr. Satish Raichur, learned counsel appearing for the appellants submits today before the court that the only possible settlement that the appellants are willing is to take care of the 1st defendant and her daughter by providing shelter in the family house of the plaintiffs and also to provide for educating the daughter of the 1st defendant having regard to the fact that her husband, the uncle of the plaintiffs was a person who was affectionate towards the plaintiffs also and who had been living in the very family house till he got married to the 1st defendant, at the age of 60 years while the 1st defendant was still in her teens. 7. Mr. Sadiq N.Goodwala, learned counsel for the respondents submits that this is no settlement at all, particularly as the 1st defendant is a sole heir of the assets and properties of her late husband, a member of the family of the plaintiffs and at any rate being the owner of the printing press and the building part etc., if she has to yield that in favour of the plaintiffs, there should be proper and adequate compensation but which is not forthcoming and therefore the proposal obviously is not acceptable. In the wake of such developments, it is inevitable to examine the appeal on its merits. 8. In this context, I have heard the learned counsel appearing for the parties and bestowed my attention to the submissions made at the bar and perused the record. 9. The suit was for a bare injunction based on the premise that the subject property was in the ownership of the father of the plaintiffs and that the land had been purchased by the father of the plaintiffs and had also put up the structure during his life time etc., However, it was not disputed that the plaintiffs' uncle was running the printing press in the suit property. It was in his name, was being looked after by him and who also lived with the plaintiffs in that family house till his marriage but the version of the plaintiffs is that when the 1st defendant's husband fell ill and was unable to look after the press by himself, he had handed over the management of the printing press to the plaintiffs and that is how they get into possession and are continuing in possession but this being not tolerated by the defendants and they being indulging, it became inevitable for the plaintiffs to file the suit for injunction to restrain them from interference. 10. A suit for bare injunction essentially gets decided by the factum of physical possession and if the title is also challenged, it also necessitates the plaintiffs seeking for a declaration of the title also. In the present case while the learned Judge of the trial court recorded a finding that the plaintiffs are in possession, the learned Judge of the lower Appellate Court has reversed this finding based on Ex.D.15, a license that stood in the name of the 1st defendant for carrying on the avocation of printing press in the subject premises. But submission of Sri. Raichur, learned counsel for the appellants is that the learned Judge of the Appellate Court has committed an error in giving much credence on this piece of material as it is one issued under the provisions of the Karnataka Shops and Establishments Act more for the purpose of ascertaining the number of workers or employees working in the establishment and for ensuring a measure of protection and security than for evidencing as to who is in possession and who is not in possession and therefore the judgment is not sustainable. 11. Mr. Sadiq Goodwala, learned counsel for the respondents would, on the other hand, point out that learned Judge of the trial Court has gone astray in placing reliance on a will set up by the plaintiffs i.e., Ex.D.1, and not giving much credence to Ex.D.20 and Ex.D.21. 11. Mr. Sadiq Goodwala, learned counsel for the respondents would, on the other hand, point out that learned Judge of the trial Court has gone astray in placing reliance on a will set up by the plaintiffs i.e., Ex.D.1, and not giving much credence to Ex.D.20 and Ex.D.21. Ex.D.1, a will dated 01.04.2008 while did indicate that the printing press was in the ownership of the husband of the 1st defendant and the will purported to bequeath that to the testators nephews i.e., the plaintiffs, had been cancelled subsequently as per E.x.D.20 and a further will Ex.D.21 dated 09.05.2008 had been executed by the very person wherein it had been indicated that under this will, the properties had been bequeathed in favour of the 1st defendant by her husband and this position having been noticed by the learned Judge of the lower Appellate Court coupled with the license issued by the City Corporation, the appeal had been rightly allowed by reversing the judgment of the trial court, that no interference is called for and urges for the dismissal of the second appeal. 12. As observed in the earlier part of this judgment, a suit for injunction goes by the factum of possession and the further making good of the cause of action which is an uncalled for intrusion into the possession of the property of the plaintiffs. 13. In the present case, possession was disputed while the plaintiffs claim to be in possession said to have been put in possession by their uncle, the late husband of 1st defendant, the 1st defendant and the 2nd defendant had claimed that they were in possession and in fact had the license also renewed in the name of 1st defendant and continued business etc. 14. The question of actual possession of subject property particularly an immovable property is a question of fact. The learned judge of the lower Appellate Court found sufficient material to conclude this aspect in favour of the defendants to hold that the defendants are in possession not merely based on Ex.D.15 as is sought to be contended by Sri. Raichur, learned counsel for the appellants. The learned judge of the lower Appellate Court found sufficient material to conclude this aspect in favour of the defendants to hold that the defendants are in possession not merely based on Ex.D.15 as is sought to be contended by Sri. Raichur, learned counsel for the appellants. Learned Appellate Judge having examined the entire circumstances and having recorded a finding that the defendants are in possession on re-appreciation of evidence and such a finding being not at all a perverse or far of the mark from the material on record, a finding of this nature cannot be disturbed in appeal u/s 100 of the Code of Civil Procedure. 15. In a suit for bare injunction, it is very essential that the plaintiffs prove that they are in durable physical possession of the subject property and it is not very relevant as to whether the defendant proves or otherwise that he or she is in possession even assuming that the defendant had also claimed that he or she is in possession of the said property. Even a failure on the part of the defendant to prove that he or she, in fact, is in possession of the subject property will not ipso facto ensure to the benefit of the plaintiffs for presuming that the plaintiffs are in durable physical possession of the property unless the plaintiffs independently by cogent and convincing material placed before the court has established that the plaintiffs are in actual physical durable possession of the subject property. It is for this reason, it has to be held that the learned Judge of the trial court has gone astray in decreeing the suit while the learned Judge of the lower Appellate court has rightly reversed the judgment of the trial court and dismissed the suit. 16. I do not find any question of law muchless substantial question of law which has been decided erroneously that arise from the judgment of the lower Appellate Court for further examination in an appeal under Section 100. No merit in the appeal. Appeal dismissed with costs quantified at Rs.10,000/-to be deposited within four weeks in favour of the 1st defendant failing which the registry to issue a certificate in favour of the 1st defendant to recover the amount, as if, it is a decree passed by the Civil Court. 17. As the main appeal itself is disposed of, Misc. Cvl. Appeal dismissed with costs quantified at Rs.10,000/-to be deposited within four weeks in favour of the 1st defendant failing which the registry to issue a certificate in favour of the 1st defendant to recover the amount, as if, it is a decree passed by the Civil Court. 17. As the main appeal itself is disposed of, Misc. Cvl. No.107917/10 does not survive for consideration. Hence, it is accordingly dismissed.